Waterboarding for God, With Decency and Compassion

After one spends 45 years in Washington, high
farce does not normally throw one off balance. I found the past few days, however,
an acid test of my equilibrium.

I missed the National Prayer Breakfast – for the 45th time in a row. But as
I drove to work I listened with rapt attention as President George W. Bush gave
his insights on prayer:

"When we lift our hearts to God, we're all equal in his sight.
We're all equally precious…. In prayer we grow in mercy and compassion.
… When we answer God's call to love a neighbor as ourselves, we enter
into a deeper friendship with our fellow man – and a deeper relationship
with our eternal Father."

Vice President Dick Cheney skipped Thursday's prayer breakfast in order to
put the final touches on the speech he gave later that morning to the Conservative
Political Action Conference. Perhaps he felt he needed some extra time to devise
careful words to extol "the interrogation program run by the CIA … a tougher
program for tougher customers, including Khalid Sheikh Mohammed, the mastermind
of 9/11," without conceding that the program has involved torture.

But there was a touch of defensiveness in Cheney's remarks, as he saw fit repeatedly
to reassure his audience yesterday that America is a "decent" country.

After all, CIA Director Michael Hayden had confirmed publicly on Tuesday that
Khalid Sheikh Mohammed and two other "high-value" detainees had been
waterboarded in 2002-2003, though Hayden added that the technique has since
been discontinued.

An extreme form of interrogation going back at least as far as the Spanish
Inquisition, waterboarding has been condemned as torture by just about everyone
– except the hired legal hands of the Bush administration.

On Wednesday President Bush's spokesman Tony Fratto revealed that the White
House reserves the right to approve waterboarding again, "depending on
the circumstances." Fratto matter-of-factly described the process still
followed by the Bush administration to approve torture – er, I mean "enhanced
interrogation techniques" like waterboarding:

"The process includes the director of the Central Intelligence
Agency bringing the proposal to the attorney general, where the review
would be conducted to determine if the plan would be legal and effective.
At that point, the proposal would go to the president. The president would
listen to the determination of his advisers and make a decision."

Dissing Congress

Cheney's task of reassuring us about our "decency"
was made no easier Thursday, when Attorney General Michael Mukasey stonewalled
questions from the hapless John Conyers, titular chair of the House Judiciary
Committee. Conyers tried, and failed, to get straight answers from Mukasey on
torture.

Conyers referred to Hayden's admission about waterboarding and branded the
practice "odious." But Mukasey seemed to take perverse delight in
"dissing" Conyers, as the expression goes in inner-city Washington.
Sadly, the tired chairman took the disrespect stoically.

He did summon the courage to ask Attorney General Mukasey directly, "Are
you ready to start a criminal investigation into whether this confirmed use
of waterboarding by U.S. agents was illegal?"

"No, I am not," Mukasey answered.

Mukasey claimed "waterboarding was found to be permissible under the law
as it existed" in the years immediately after 9/11; thus, the Justice Department
could not investigate someone for doing something the department had declared
legal. Got that?

Mukasey explained:

"That would mean the same department that authorized the program
would now consider prosecuting somebody who followed that advice."

Oddly, Mukasey himself is on record saying waterboarding would be torture if
applied to him. And Michael McConnell, director of national intelligence, was
even more explicit in taking the same line in an interview with Lawrence Wright
of New Yorker magazine. McConnell told Wright that, for him:

"Waterboarding would be excruciating. If I had water draining
into my nose, oh God, I just can't imagine how painful! Whether it's torture
by anybody else's definition, for me it would be torture."

Okay, it would be torture if done to you, Mike; how about if done to others?
Sadly, McConnell, too, missed the prayer breakfast and the president's moving
reminder that we are called "to love a neighbor as ourselves." Is
there an exception, perhaps, for detainees?

Cat Out of Bag

When torture first came up during his interview
with the New Yorker, McConnell was more circumspect, repeating the obligatory
bromide "We don't torture," as former CIA Director George Tenet did
in five consecutive sentences while hawking his memoir on 60 Minutes
on April 29, 2007. As McConnell grew more relaxed, however, he let slip the
rationale for Mukasey's effrontery and the administration's refusal to admit
that waterboarding is torture. For anyone paying attention, that rationale has
long been a no-brainer. But here is McConnell inadvertently articulating it:

"If it is ever determined to be torture, there will be a huge
penalty to be paid for anyone engaging in it."

Like death. Even Alberto Gonzales could grasp this at the outset. That explains
the overly clever, lawyerly wording in the Jan. 25, 2002, memorandum for the
president drafted by the vice president's lawyer, David Addington, but signed
by Gonzales. Addington/Gonzales argued that the president's determination that
the Geneva agreements on prisoners of war do not apply to al-Qaeda and the Taliban:

"Substantially reduces the threat of domestic criminal prosecution
under the War Crimes Act (18 U.S.C. 2441) … enacted in 1996…

"Punishments for violations of Section 2441 include the death
penalty…

"[I]t is difficult to predict the motives of prosecutors and
independent counsels who may in the future decide to pursue unwarranted
charges based on Section 2441. Your determination would create a reasonable
basis in law that Section 2441 does not apply, which would provide a solid
defense to any future prosecution."

Mike McConnell needs to get his own lawyers to bring him up to date on all
this. For that memorandum was quickly followed by an action memorandum signed
by George W. Bush on Feb. 7, 2002. The president's memo incorporated the exact
wording of Addington/Gonzales' bottom line. To wit, the U.S. would "treat
the detainees humanely and, to the extent appropriate and consistent with
military necessity, in a manner consistent with the principles of [Geneva]"
(emphasis added).

That provided the loophole through which then-defense secretary Donald Rumsfeld
and then-CIA director George Tenet and their subordinates drove the Mack truck
of torture. Even the Bush-administration-friendly editorial page of the Washington
Post saw fit on Friday to declare torture "illegal in all instances,"
adding that "waterboarding is, and always has been, torture."

Waterboarding has been condemned as torture for a very long time. After WWII
Japanese soldiers were hanged for the "war crime" of waterboarding
American soldiers.

Patriots and Prophets

Patriots and prophets have made it clear from
our earliest days that such abuse has no place in America.

Virginia's Patrick Henry insisted passionately that "the rack and the
screw," as he put it, were barbaric practices that had to be left behind
in the Old World, or we are "lost and undone." Attorney General Mukasey, for
his part, recently refused to say whether he considers the rack and the screw
forms of torture, dismissing the question as hypothetical.

As for prophets, George Hunzinger of Princeton Theological Seminary has awakened
enough religious folks to form the National
Religious Campaign Against Torture, a coalition of 130 religious organizations
from Left to Right on the political spectrum. Hunzinger puts it succinctly:
"To acknowledge that waterboarding is torture is like conceding that the
sun rises in the east," adding:

"All the dissembling in high places that makes these shocking abuses
possible must be brought to an end. But they will undoubtedly continue
unless those responsible for them are held accountable…. A special counsel
is an essential first step."

Sadly, Hunzinger and his associates have been unable to overcome the pious
complacency of the vast majority of institutional churches, synagogues, and
mosques in this country and their reluctance to exercise moral leadership.

How It Looks From Outside

Sometimes it takes a truth-telling outsider to
throw light on our moral failures.

South African Methodist Bishop Peter Storey, erstwhile chaplain to Nelson Mandela
in prison and longtime outspoken opponent of apartheid, has this to say to those
clergy who might be moved to preach more than platitudes:

"We had obvious evils to engage; you have to unwrap your culture
from years of red, white, and blue myth. You have to expose and confront
the great disconnect between the kindness, compassion, and caring of most
American people and the ruthless way American power is experienced, directly
or indirectly, by the poor of the earth. You have to help good people
see how they have let their institutions do their sinning for them.

"All around the world there are those who long to see your human
goodness translated into a different, more compassionate way of relating
with the rest of this bleeding planet."

Mukasey's thumbing his nose at Conyers' committee yesterday was simply the
most recent display of contempt for Congress on the part of the Bush administration.
The founders expected our representatives in Congress to be taken seriously
by the executive branch, and expected that members of Congress would hold senior
executives accountable – to the point of impeaching them, when necessary, for
high crimes and misdemeanors.

That used to worry those officials and put a brake on more outlandish behavior.
Not any more.

No Worries, George

One reads George Tenet's memoirs with some nostalgia
for the days of a modicum of congressional oversight, and with a strong sense
of irony – as he confesses concern that Congress might one day hold him and
others accountable for taking liberties with national and international law.

It seems likely that then-White House counsel Alberto Gonzales and David Addington
counseled Tenet that his concerns were quaint and obsolete and, alas, they may
have been right, the way things have been going. But Tenet apparently entertained
lingering misgivings – perhaps even qualms of conscience.

In the immediate post-9/11 period, Tenet says he told the president "our
only real ally" on the Afghan border was Uzbekistan, "where we had
established important intelligence-collection capabilities." We now know
from UK Ambassador to Uzbekistan Craig Murray that those "collection capabilities"
included the most primitive methods of torture, including boiling alleged "terrorists"
alive.

Tenet adds that he stressed the importance of being able to detain unilaterally
al-Qaeda operatives around the world. His worries shine through the rather telling
sentences that follow:

"We were asking for and we would be given as many authorities as CIA
ever had. Things could blow up. People, me among them, could end up spending
some of the worst days of our lives justifying before congressional overseers
our new freedom to act." (At
the Center of the Storm, p. 177-178)

Tenet need not have worried. He would be shielded from accountability by a
timid Congress as well as an arrogant White House able to arrogate unprecedented
power to itself and to shield those it wished to protect.

Setting the Tone

It was President George W. Bush who set the tone
from the outset. After his address to the nation on the evening of 9/11, he
assembled his top national security aides in the White House bunker – the easier,
perhaps, to foster a bunker mentality. Among them was counter-terrorism chief
Richard Clarke, who quoted the president in his memoir:

"I want you to understand that we are at war and we will stay at war
until this is done. Nothing else matters. Everything is available for the pursuit
of this war. Any barriers in your way, they're gone. Any money you need, you
have it. This is our only agenda. …

"I don't care what the international lawyers say, we are going to
kick some ass."

Clarke, of course, took his book's title from the oath of office we all swore
as military officers and/or senior government officials: "To defend the
Constitution against all enemies, foreign and domestic."

John Ashcroft, head of the Department of Justice at the time, fell in lockstep
with the thrust of the president's comment dismissing any concern with international
law – or, as would quickly be seen, domestic law, as well. With the enthusiastic
assistance of David Addington, the affable Ashcroft assembled a cabal of Mafia-like
lawyers whose imaginative legal opinions on torture, warrantless eavesdropping,
and other abuses mark them forever as "domestic enemies" of the Constitution.

Add Mukasey to this distinguished roster.

Torture: The Hallmark

What is not widely known is that Justice Department-approved
torture was first applied on an American citizen, John Walker Lindh, who was
captured in Afghanistan in late November 2001. The White House and corporate
press immediately sensationalized Lindh as "the American Taliban."

Jesselyn Radack, a conscientious legal adviser in the Justice Department's
Professional Responsibility Advisory Office, which gives ethics advice to department
attorneys, insisted that Lindh be advised of his rights before any interrogation.
Instead, he was tortured mercilessly during the first few days of his internment
and denied medical care.

Lindh had had the foolishness and bad luck to be in the wrong place at the
wrong time, i. e., in a large group of prisoners rounded up by CIA and Army
paramilitary forces – too large a group, it turned out.

The Department of Justice moved quickly to fire Radack for her principled stand.
But she had the presence of mind to save e-mails providing chapter and verse
of the difficult exchanges in which she had insisted on respect for Lindh's
rights as an American citizen. Newsweek carried the story briefly, but
neither Congress nor anyone else in the media showed much interest.

Radack's book recounting this experience, The Canary in the Coalmine: Blowing
the Whistle in the Case of "American Taliban" John Walker Lindh,
is available online.

Against this backdrop, together with Guantanamo, Abu Ghraib, and prisons in
Afghanistan, Iraq, and elsewhere, Patrick Henry's warning remains a challenge
for our time: Are we "lost and undone?" I think not, but we had better
get it together soon, for, as Dr. Martin Luther King Jr. cautioned, "There
is such a thing as too late."